Editing Bush v. Gore (section)

===Critiques===
{{See also|Supreme Court of the United States#Criticism and controversies}}
Several articles have characterized the decision as damaging the reputation of the court, increasing the view of judges as partisan, and decreasing Americans' trust in the integrity of elections, an outcome Stevens predicted in his dissent.<ref name="auto5">{{cite web |last=Krauthammer |first=Charles |date=July 2, 2012 |title=Why Roberts did it |url=https://www.chicagotribune.com/opinion/ct-xpm-2012-07-02-ct-oped-0702-krauthammer-20120702-17-story.html |url-status=live |archive-url=https://web.archive.org/web/20190703052113/https://www.chicagotribune.com/opinion/ct-xpm-2012-07-02-ct-oped-0702-krauthammer-20120702-17-story.html |archive-date=July 3, 2019 |access-date=2024-11-01 |website=[[Chicago Tribune]]}}</ref><ref name="auto4">{{cite journal|last=Balkin|first=Jack M.|date=June 2001|title=Bush v. Gore and the Boundary Between Law and Politics|url=https://www.jstor.org/stable/797581|journal=Yale Law Journal|volume=110|issue=8|pages=1407–1458|doi=10.2307/797581|jstor=797581}}</ref><ref name="auto2"/><ref name="auto6">{{cite web |last=Hasen |first=Richard L |date=December 9, 2010 |title=The legacy of Bush v. Gore |url=https://theweek.com/articles/488658/legacy-bush-v-gore |url-status=live |archive-url=https://web.archive.org/web/20200724133818/https://theweek.com/articles/488658/legacy-bush-v-gore |archive-date=2020-07-24 |website=[[The Week]]}}</ref><ref name="auto1">{{cite journal |last1=Hasen |first1=Richard L. |date=December 3, 2010 |title=The real legacy of Bush v. Gore |url=https://slate.com/news-and-politics/2010/12/the-real-legacy-of-bush-v-gore.html |journal=Slate |archive-url=https://web.archive.org/web/20200115174718/https://slate.com/news-and-politics/2010/12/the-real-legacy-of-bush-v-gore.html |archive-date=2020-01-15}}</ref><ref name="how bad">{{cite web |last=Elspeth |first=Reeve |date=November 29, 2010 |title=Just How Bad Was Bush v. Gore? |url=https://www.theatlantic.com/politics/archive/2010/11/just-how-bad-was-bush-v-gore/343247/ |url-status=live |archive-url=https://web.archive.org/web/20190613225116/https://www.theatlantic.com/politics/archive/2010/11/just-how-bad-was-bush-v-gore/343247/ |archive-date=2019-06-13 |website=[[The Atlantic]]}}</ref> Part of the reason recounts could not be completed was the various stoppages ordered by the various branches and levels of the judiciary, most notably the Supreme Court.<ref name="scotus-stay1">{{Cite web|url=http://election2000.law.stanford.edu/wp-content/uploads/2012/09/00-949x.pdf|title=Bush v. Gore, On Application for Stay|access-date=July 29, 2018|archive-date=November 14, 2016|archive-url=https://web.archive.org/web/20161114002000/http://election2000.law.stanford.edu/wp-content/uploads/2012/09/00-949x.pdf|url-status=dead}}</ref> Opponents argued that it was improper for the Court (by the same five justices who joined the ''per curiam'' opinion) to grant a stay that preliminarily stopped the recounts based on Bush's likelihood of success on the [[Merit (law)|merits]] and possible [[irreparable injury]] to Bush.<ref name="bandits">{{cite magazine |url=http://www.washingtonmonthly.com/features/2001/0103.raskin.html |title=Bandits in Black Robes |first=Jamin |last=Raskin |magazine=Washington Monthly |date=March 2001 |access-date=October 28, 2006 |quote=But in ''Bush v. Gore'', the Rehnquist majority did not even ask, much less explain, how Bush was personally injured by the hypothetical possibility that anonymous third-party citizens might have their ballots counted differently in Florida's presidential election.|url-status=dead|archive-url=https://web.archive.org/web/20061019125616/http://www.washingtonmonthly.com/features/2001/0103.raskin.html|archive-date=October 19, 2006}}</ref> Although stay orders normally do not include justification, Scalia concurred to express some brief reasoning to justify it, saying that one potential irreparable harm was that an invalid recount might undermine the legitimacy of Bush's election (presumably if, for example, it were to find that Gore should have won).<ref name="scotus-stay1" /> Supporters of the stay, such as [[Charles Fried]], contend that the stay's validity was vindicated by the ultimate decision on the merits and that the only thing the stay prevented was a recount "done in an unconstitutional way".<ref>Fried, Charles. [https://books.google.com/books?id=S3EM-hS9WB4C&pg=PA3&dq=%22Unreasonable+Reaction+to+a+Reasonable+Decision%22+fried "An Unreasonable Reaction to a Reasonable Decision"] in ''Bush V. Gore: The Question of Legitimacy'', page 12 (Yale University Press, Bruce Ackerman ed. 2002): "The outrage against the stay by 673 law professors is, to say the least, overwrought. If the decision on the merits was justified, the stay becomes irrelevant. Yes, it did shut down the counting three and a half days earlier, but by hypothesis that counting was being done in an unconstitutional way."</ref>

Some critics argued that the Court's decision was a perversion of the Equal Protection Clause<ref name="bandits" /> and contrary to the [[political question]] doctrine.<ref>{{Cite journal |last=Tribe |first=Laurence H. |date=2003 |title=The Unbearable Wrongness of Bush v. Gore |url=http://www.ssrn.com/abstract=431080 |journal=SSRN Electronic Journal |language=en |doi=10.2139/ssrn.431080 |issn=1556-5068|hdl=11299/169404 |hdl-access=free }}</ref> Scott Lemieux of University of Washington points out that if recounting votes without a uniform statewide standard were truly a violation of the Equal Protection Clause, this should have meant that the initial count, which also lacked a uniform standard, was itself unconstitutional.<ref name="how bad" /> On the other hand, [[Geoffrey R. Stone]] has expressed sympathy with the Court's equal protection reasoning, even though Stone was dismayed by what he saw as the sudden and suspect conversion of Rehnquist, Scalia and Thomas to that equal protection principle. According to Stone:

{{blockquote|No one familiar with the jurisprudence of Justices Rehnquist, Scalia, and Thomas could possibly have imagined that they would vote to invalidate the Florida recount process on the basis of their own well-developed and oft-invoked approach to the Equal Protection Clause.<ref>{{cite web|title=Equal Protection? The Supreme Court's Decision in Bush v. Gore|url=http://fathom.lib.uchicago.edu/1/777777122240/|last=Stone|first=Geoffrey R.|year=2001}}</ref>}}

Stevens's criticism of the Court in his dissent for questioning the impartiality of Florida's judiciary was itself criticized by Lund, a former law clerk for O'Connor.<ref name="nyt1989"/><ref name="rightness">{{cite journal| journal=Cardozo Law Review |volume=23 |issue=4|ssrn=267874|title=The Unbearable Rightness of ''Bush v. Gore''|page=1221|last=Lund|first=Nelson|date=April 26, 2001}}</ref><ref>The dissent by Justice Stevens in Bush v. Gore stated, "What must underlie petitioners' entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law."</ref> Professor Charles Zelden faults the ''per curiam'' opinion in the case for, among other things, not declaring that the nation's electoral system required significant reform, and for not condemning administration of elections by part-time boards of elections dominated by partisan and unprofessional officials. Zelden concludes that the Court's failure to spotlight this critical flaw in American electoral democracy made a replay of ''Bush v. Gore'' more likely, not less likely, either in Florida or elsewhere.<ref name="Zelden" /> In 2013, O'Connor, who had voted with the majority, said that the case "gave the court a less-than-perfect reputation". She added, "Maybe the court should have said, 'We're not going to take it, goodbye.' ... And probably the Supreme Court added to the problem at the end of the day."<ref name="tribune">{{cite news |url=https://www.chicagotribune.com/news/local/ct-met-sandra-day-oconnor-edit-board-20130427,0,1201477.story |work=Chicago Tribune |title=O'Connor questions court's decision to take Bush v. Gore |date=April 27, 2013 |first1=Dahleen |last1=Glanton |access-date=April 29, 2013 |archive-url=https://web.archive.org/web/20130504091947/http://www.chicagotribune.com/news/local/ct-met-sandra-day-oconnor-edit-board-20130427,0,1201477.story |archive-date=May 4, 2013 |url-status=dead}}</ref>

A ''[[Vanity Fair (magazine)|Vanity Fair]]'' article quotes several of the court's clerks at the time who were critical of the decision. They note that, despite the ''per curiam'' opinion's declaration that the case was taken "reluctantly", Kennedy had been rather enthusiastic about taking the case all along.<ref name="Vanity" /> They felt at the time, as had many legal scholars, that the case was unlikely to go to the Supreme Court at all. In fact some of the justices were so certain that the case would never come before them that they had already left for vacations.